Osteen residents say law giving Volusia trail right of way blindsided them

From left, Sheryl Manche, founder of SaveOsteenNow.com, and Byron and Catherine Peavy are fighting to stop Volusia County from taking their land to build a trail. The three, who are working with 12 other landowners, are seen Wednesday inside the Peavy home in Osteen.

Published: Saturday, February 1, 2014 at 9:37 p.m.

Last Modified: Sunday, February 2, 2014 at 10:36 p.m.

About two miles down the rural highway from Byron and Catherine Peavy’s house, a bulldozer has been clearing a path in their direction.

At their house, behind an automatic gate with a stenciled sign that shouts: “VOLUSIA COUNTY WANTS TO TAKE OUR LAND,” the Peavys have been waiting for it to reach their front yard.

Rather, what they thought was their front yard.

The Peavys are two of the latest Florida residents to discover land they believed was theirs has been reserved for government use dating back to the Depression era.

The reason is the Murphy Act, a 1937 bailout program that eventually returned tax-defaulted land to private property owners on a few conditions. Among those conditions: The government could come back and claim strips of those lands to improve or expand roads.

So, 77 years after it passed, the Murphy Act is still working, this time to build a section of the East Central Regional Rail Trail, a 52-mile hiking-biking project that will eventually span the county. In Osteen, people like the Peavys say the law is working against them, taking property they thought they owned free and clear.

Volusia County officials say the law is working on behalf of taxpayers — because Murphy reservations belong to everyone, and they spare the millions of dollars governments would otherwise have to pay for miles and miles of road right of way.

“What’s right in America today is wrong, and what’s wrong is right,” Byron Peavy said recently in a living room that has sort of become the Murphy opposition’s base. “They’re every bit right to take that land,” he said of the county’s legal claim. “But it’s wrong to do it.”

“We have an obligation, with it being available to the public,” countered Jerry Brinton, the Volusia County engineer overseeing the project. “We’d be criticized if we did anything other than use it for what it was intended for.”

People in Osteen don’t seem likely to soften their own criticisms anytime soon.

‘SNATCHING OUR PROPERTY’

The Peavy house sits about 175 feet off the edge of Osteen-Maytown Road, with a shed in front and a horse and two goats out back. It’s on about 2½ acres. The Peavys bought it in June for $182,000. They’re raising a son there and have another child on the way.

In October, four months after they closed on the house, the Peavys got a letter from Volusia County: “The County is in the process of designing the East Central Regional Rail Trail on Osteen-Maytown Road,” it said. “A recent title search shows that your property has a Murphy Reservation on it.”

That letter, which the Peavys said was the first they heard of any Murphy reservation, arrived on a Saturday. The County Council was to vote on the issue five days later.

The Peavys felt blindsided, but they showed up at the meeting in DeLand. So did several of their neighbors, 12 of whom got the same letter. They all pleaded their case. That day, with Councilwoman and strong trails advocate Pat Northey absent, the council split 3-3 on whether to move ahead with the Murphy action.

It was only briefly stalled; a month later, the issue came back again. This time, with Northey present, the council voted 5-2 to move forward. Not long after that, the state Department of Environmental Protection — which handles local governments’ Murphy requests — approved releasing the land.

Since then, the residents have grown more determined. “The government is supposed to be there to help us,” said Don Causseaux, a neighbor of the Peavys. “And what are they doing? They’re snatching our property.”

Northey certainly doesn’t see it that way. The state purchased most of the former railroad land for the Rail Trail in 2007, but this stretch in Osteen was an exception. Northey said the route using the Murphy right of way should be less intrusive along Osteen-Maytown Road.

“No one is stealing anyone’s land,” she said. “The state owns it. Perhaps a claim against the title company would be their recourse.”

Sheryl Manche, who doesn’t live on one of the affected properties but is an advocate of the area and runs the website “Save Osteen Now,” has argued the county is exploiting a loophole. “No one was envisioning (in 1937) that 70 years from now, we’re going to steal someone’s land to build a bike trail,” she said.

That’s not to say that the people in Osteen would be any more agreeable to using Murphy reservations for an actual road expansion. In fact, that’s one of their fears: the eventual four-laning to accommodate the large-scale Farmton development. Many of the protesters look at the trail project as if it’s the first step toward building a busier highway that disrupts their rural neighborhood.

Brinton said that’s not in the plans. “It would be outrageous,” he said. The road could go in “to the north, where there’s no homes, and it’s wide open, a lot of undeveloped land.”

Glenn Storch, an attorney for the Farmton landowner Miami Corp., also has said there are no plans to four-lane the existing highway.

Northey, widely known as Volusia’s “queen of trails,” argued the irony is that the Rail Trail will improve the neighborhoods it passes. “Property values increase and (trails) are now viewed as the most wanted neighborhood amenity,” she said. “They are the new golf course.”

Again, people in Osteen aren’t taking anyone’s word for it.

MURPHY’S LAW

These Murphy reservation issues are not uncommon, but they’re not necessarily well-known outside of government buildings or real-estate law offices.

The original 1937 act applied to property owners who had gone delinquent on their taxes in the midst of the Great Depression. The state gave those owners two years to pay off their tax certificates before they’d have to forfeit their land. After those two years were up, the state had a lot of land on its hands. It sold it off piece by piece, sometimes for as little as $1, in most cases to the former owners. But there was a trade-off: the state kept certain rights, like phosphate, metal and mineral rights, and half the interest in any oil. The state also kept a wide right of way around existing state roads and canals. A 2009 Florida Bar Journal article estimated the state issued 800,000 Murphy deeds.

Brinton said the county stumbled onto the option when it ran a title search in the area. The stretch of 13 Osteen properties used to be two big parcels, which were eventually subdivided and sold. At various points over the years, Brinton said, the Murphy reservations disappeared from the titles.

“In the mid-80s, for the most part, they quit referencing the encumbrance of the Murphy deed,” he said. “And it’s sad. I’d be madder than heck, too. But it’s the title company. We didn’t cause it to not be shown.”

Clay Henderson, an environmental and land-use attorney who was on the County Council in the 1990s, said the council always intended to use Murphy deeds in building its trail system. “It’s no surprise, no secret,” he said. “If (the residents) bought their property without a lawyer, without title insurance, it’s their problem. If they bought it with title insurance, I guarantee it’s an exception. If it’s not, they need to sue their title company.”

The Peavys said they do plan to file a title insurance claim.

The odds are there are plenty others who are living next to Murphy reservations and don’t know it. But it’s unknown exactly how many of these properties exist in Volusia or across the state. The Florida Bar Journal could only guess: “An accurate calculation of the amount of land vesting in the state in 1939 is unknown; however, newspaper accounts estimated between 17 and 20 million acres.”

The state Department of Environmental Protection generally processes about 50 Murphy release requests every year. Volusia had one last year for a sidewalk project in Wilbur-by-the-Sea.

“That would be just an unbelievably daunting task to determine how many are still in existence out there,” said Thomas R. Sawyer, the state Department of Environmental Protection’s acting deputy general counsel. “But I’d say they’re very, very well-known in the real property lawyer’s mind. We look for them every time we do a title analysis.”

It was not well-known to Byron Peavy, who said he’s dealt with eminent domain before, on a property he used to own. At least in that case, he said, there was compensation.

‘PROTEST & HELL RAISING’

The trail project has been moving quickly and with the expectation that it will become a significant ecotourism draw. Last week, the county held a groundbreaking ceremony along State Road 415 for a bridge that eventually will send the trail past the Murphy properties. The protesters found out and planned a demonstration. Peavy made an event page on Facebook and called it an “Osteen Land Steal Protest & Hell Raising.”

U.S. Rep. John Mica was the county’s featured guest. Looking out on the protesters, he said he wasn’t aware of the controversy, but he’d look into it. He posed for a photo with the group and its “STOP LAND STEAL” signs. His assistant, John Booker, met with some of them last week. “We’re just trying to figure out what the facts are, and listen to the folks, and see what, if any, possible solutions might be out there,” he said.

It’s hard to say what those solutions could be, though. The county has claimed it will build the trail with as little impact on private property as possible. It’s not using all of the Murphy land it could take by law — 100 feet in either direction from the center of Osteen-Maytown Road. Instead, it’s using an average of about 60 feet from the center line. The people who live there still don’t see why a trail couldn’t exist on less than that.

Brinton said he would help each of the residents apply for the state to release the remaining 40 feet for their own use. The residents are reluctant to do that, though, because it might imply they’ve acquiesced to the county’s 60.

The Peavys, their neighbor Causseaux and “Save Osteen’s” Manche all said they’re not opposed to the trail itself. They are strongly opposed to the width and location of it. They want to see the original tax certificates in the Murphy transactions. All they’ve been able to get is a certified list. They have discussed chaining themselves to a tree in front of the bulldozer, but they don’t know if that would get them arrested.

<p><span class="Dateline">OSTEEN</span></p><p>About two miles down the rural highway from Byron and Catherine Peavy's house, a bulldozer has been clearing a path in their direction. </p><p>At their house, behind an automatic gate with a stenciled sign that shouts: “VOLUSIA COUNTY WANTS TO TAKE OUR LAND,” the Peavys have been waiting for it to reach their front yard.</p><p>Rather, what they thought was their front yard.</p><p>The Peavys are two of the latest Florida residents to discover land they believed was theirs has been reserved for government use dating back to the Depression era. </p><p>The reason is the Murphy Act, a 1937 bailout program that eventually returned tax-defaulted land to private property owners on a few conditions. Among those conditions: The government could come back and claim strips of those lands to improve or expand roads.</p><p>So, 77 years after it passed, the Murphy Act is still working, this time to build a section of the East Central Regional Rail Trail, a 52-mile hiking-biking project that will eventually span the county. In Osteen, people like the Peavys say the law is working against them, taking property they thought they owned free and clear.</p><p>Volusia County officials say the law is working on behalf of taxpayers — because Murphy reservations belong to everyone, and they spare the millions of dollars governments would otherwise have to pay for miles and miles of road right of way. </p><p>“What's right in America today is wrong, and what's wrong is right,” Byron Peavy said recently in a living room that has sort of become the Murphy opposition's base. “They're every bit right to take that land,” he said of the county's legal claim. “But it's wrong to do it.”</p><p>“We have an obligation, with it being available to the public,” countered Jerry Brinton, the Volusia County engineer overseeing the project. “We'd be criticized if we did anything other than use it for what it was intended for.”</p><p>People in Osteen don't seem likely to soften their own criticisms anytime soon.</p><h3>'SNATCHING OUR PROPERTY'</h3>
<p>The Peavy house sits about 175 feet off the edge of Osteen-Maytown Road, with a shed in front and a horse and two goats out back. It's on about 2½ acres. The Peavys bought it in June for $182,000. They're raising a son there and have another child on the way.</p><p>In October, four months after they closed on the house, the Peavys got a letter from Volusia County: “The County is in the process of designing the East Central Regional Rail Trail on Osteen-Maytown Road,” it said. “A recent title search shows that your property has a Murphy Reservation on it.” </p><p>That letter, which the Peavys said was the first they heard of any Murphy reservation, arrived on a Saturday. The County Council was to vote on the issue five days later.</p><p>The Peavys felt blindsided, but they showed up at the meeting in DeLand. So did several of their neighbors, 12 of whom got the same letter. They all pleaded their case. That day, with Councilwoman and strong trails advocate Pat Northey absent, the council split 3-3 on whether to move ahead with the Murphy action.</p><p>It was only briefly stalled; a month later, the issue came back again. This time, with Northey present, the council voted 5-2 to move forward. Not long after that, the state Department of Environmental Protection — which handles local governments' Murphy requests — approved releasing the land. </p><p>Since then, the residents have grown more determined. “The government is supposed to be there to help us,” said Don Causseaux, a neighbor of the Peavys. “And what are they doing? They're snatching our property.”</p><p>Northey certainly doesn't see it that way. The state purchased most of the former railroad land for the Rail Trail in 2007, but this stretch in Osteen was an exception. Northey said the route using the Murphy right of way should be less intrusive along Osteen-Maytown Road.</p><p>“No one is stealing anyone's land,” she said. “The state owns it. Perhaps a claim against the title company would be their recourse.”</p><p>Sheryl Manche, who doesn't live on one of the affected properties but is an advocate of the area and runs the website “Save Osteen Now,” has argued the county is exploiting a loophole. “No one was envisioning (in 1937) that 70 years from now, we're going to steal someone's land to build a bike trail,” she said.</p><p>That's not to say that the people in Osteen would be any more agreeable to using Murphy reservations for an actual road expansion. In fact, that's one of their fears: the eventual four-laning to accommodate the large-scale Farmton development. Many of the protesters look at the trail project as if it's the first step toward building a busier highway that disrupts their rural neighborhood.</p><p>Brinton said that's not in the plans. “It would be outrageous,” he said. The road could go in “to the north, where there's no homes, and it's wide open, a lot of undeveloped land.” </p><p>Glenn Storch, an attorney for the Farmton landowner Miami Corp., also has said there are no plans to four-lane the existing highway.</p><p>Northey, widely known as Volusia's “queen of trails,” argued the irony is that the Rail Trail will improve the neighborhoods it passes. “Property values increase and (trails) are now viewed as the most wanted neighborhood amenity,” she said. “They are the new golf course.”</p><p>Again, people in Osteen aren't taking anyone's word for it.</p><h3>MURPHY'S LAW</h3>
<p>These Murphy reservation issues are not uncommon, but they're not necessarily well-known outside of government buildings or real-estate law offices. </p><p>The original 1937 act applied to property owners who had gone delinquent on their taxes in the midst of the Great Depression. The state gave those owners two years to pay off their tax certificates before they'd have to forfeit their land. After those two years were up, the state had a lot of land on its hands. It sold it off piece by piece, sometimes for as little as $1, in most cases to the former owners. But there was a trade-off: the state kept certain rights, like phosphate, metal and mineral rights, and half the interest in any oil. The state also kept a wide right of way around existing state roads and canals. A 2009 Florida Bar Journal article estimated the state issued 800,000 Murphy deeds.</p><p>Brinton said the county stumbled onto the option when it ran a title search in the area. The stretch of 13 Osteen properties used to be two big parcels, which were eventually subdivided and sold. At various points over the years, Brinton said, the Murphy reservations disappeared from the titles.</p><p>“In the mid-80s, for the most part, they quit referencing the encumbrance of the Murphy deed,” he said. “And it's sad. I'd be madder than heck, too. But it's the title company. We didn't cause it to not be shown.”</p><p>Clay Henderson, an environmental and land-use attorney who was on the County Council in the 1990s, said the council always intended to use Murphy deeds in building its trail system. “It's no surprise, no secret,” he said. “If (the residents) bought their property without a lawyer, without title insurance, it's their problem. If they bought it with title insurance, I guarantee it's an exception. If it's not, they need to sue their title company.”</p><p>The Peavys said they do plan to file a title insurance claim.</p><p>The odds are there are plenty others who are living next to Murphy reservations and don't know it. But it's unknown exactly how many of these properties exist in Volusia or across the state. The Florida Bar Journal could only guess: “An accurate calculation of the amount of land vesting in the state in 1939 is unknown; however, newspaper accounts estimated between 17 and 20 million acres.”</p><p>The state Department of Environmental Protection generally processes about 50 Murphy release requests every year. Volusia had one last year for a sidewalk project in Wilbur-by-the-Sea. </p><p>“That would be just an unbelievably daunting task to determine how many are still in existence out there,” said Thomas R. Sawyer, the state Department of Environmental Protection's acting deputy general counsel. “But I'd say they're very, very well-known in the real property lawyer's mind. We look for them every time we do a title analysis.”</p><p>It was not well-known to Byron Peavy, who said he's dealt with eminent domain before, on a property he used to own. At least in that case, he said, there was compensation.</p><h3>'PROTEST &amp; HELL RAISING'</h3>
<p>The trail project has been moving quickly and with the expectation that it will become a significant ecotourism draw. Last week, the county held a groundbreaking ceremony along State Road 415 for a bridge that eventually will send the trail past the Murphy properties. The protesters found out and planned a demonstration. Peavy made an event page on Facebook and called it an “Osteen Land Steal Protest &amp; Hell Raising.”</p><p>U.S. Rep. John Mica was the county's featured guest. Looking out on the protesters, he said he wasn't aware of the controversy, but he'd look into it. He posed for a photo with the group and its “STOP LAND STEAL” signs. His assistant, John Booker, met with some of them last week. “We're just trying to figure out what the facts are, and listen to the folks, and see what, if any, possible solutions might be out there,” he said.</p><p>It's hard to say what those solutions could be, though. The county has claimed it will build the trail with as little impact on private property as possible. It's not using all of the Murphy land it could take by law — 100 feet in either direction from the center of Osteen-Maytown Road. Instead, it's using an average of about 60 feet from the center line. The people who live there still don't see why a trail couldn't exist on less than that.</p><p>Brinton said he would help each of the residents apply for the state to release the remaining 40 feet for their own use. The residents are reluctant to do that, though, because it might imply they've acquiesced to the county's 60.</p><p>The Peavys, their neighbor Causseaux and “Save Osteen's” Manche all said they're not opposed to the trail itself. They are strongly opposed to the width and location of it. They want to see the original tax certificates in the Murphy transactions. All they've been able to get is a certified list. They have discussed chaining themselves to a tree in front of the bulldozer, but they don't know if that would get them arrested. </p><p>It might, because by law, they'd be in a public right of way.</p><br>